BUCKLEY, SECRETARY OF STATE OF COLORADO v. AMERICAN
CONSTITUTIONAL LAW FOUNDATION, INC., et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT

No. 97&emdash;930

Argued October 14, 1998&endash;Decided January 12,
1999

Ginsburg, J., delivered the opinion of the
Court, in which Stevens, Scalia, Kennedy, and Souter, JJ., joined.
Thomas, J., filed an opinion concurring in the judgment. O'Connor,
J., filed an opinion concurring in the judgment in part and
dissenting in part, in which Breyer, J., joined. Rehnquist,
C. J., filed a dissenting opinion.

Colorado allows its citizens to make laws directly through
initiatives placed on election ballots. The complaint in this federal
action challenged six of the States many controls on the
initiative-petition process. Plaintiffs-respondents, the American
Constitutional Law Foundation, Inc., and several individuals
(collectively, ACLF), charged that the following prescriptions of
Colorados law governing initiative petitions violate the First
Amendments freedom of speech guarantee: (1) the requirement
that petition circulators be at least 18 years old, Colo. Rev. Stat.
§1&emdash;40&emdash;112(1); (2) the further requirement that
they be registered voters, ibid.;(3) the limitation of
the petition circulation period to six months,
§1&emdash;40&emdash;108; (4) the requirement that petition
circulators wear identification badges stating their names, their
status as VOLUNTEER or PAID, and if the
latter, the name and telephone number of their employer,
§1&emdash;40&emdash;112(2); (5) the requirement that circulators
attach to each petition section an affidavit containing, inter
alia, the circulators name and address,
§1&emdash;40&emdash;111(2); and (6) the requirements that
initiative proponents disclose (a) at the time they file their
petition, the name, address, and county of voter registration of all
paid circulators, the amount of money proponents paid per petition
signature, and the total amount paid to each circulator, and (b) on a
monthly basis, the names of the proponents, the name and address of
each paid circulator, the name of the proposed ballot measure, and
the amount of money paid and owed to each circulator during the
month, §1&emdash;40&emdash;121. The District Court struck down
the badge requirement and portions of the disclosure requirements,
but upheld the age, affidavit, and registration requirements, and the
six-month limit on petition circulation. The Tenth Circuit affirmed
in part and reversed in part. That court properly sought guidance
from this Courts recent decisions on ballot access, see,
e.g., Timmons v. Twin Cities Area New Party, 520 U.S.
351, and on hand-bill distribution, see, e.g., McIntyre v.
Ohio Elections Commn, 514 U.S. 334. The Tenth Circuit
upheld, as reasonable regulations of the ballot-initiative process,
the age restriction, the six-month limit on petition circulation, and
the affidavit requirement. The court struck down the requirement that
petition circulators be registered voters, and also held portions of
the badge and disclosure requirements invalid as trenching
unnecessarily and improperly on political expression. This Court
agreed to review the Court of Appeals dispositions concerning the
registration, badge, and disclosure requirements. See 522 U.S.
___.

Precedent guides
this review. In Meyer v. Grant, 486 U.S. 414, this
Court struck down Colorados prohibition of payment for the
circulation of ballot-initiative petitions, concluding that petition
circulation is core political speech for which First
Amendment protection is at its zenith. Id., at
422, 425. This Court has also recognized, however, that there
must be a substantial regulation of elections if they are to be fair
and honest and if some sort of order is to accompany the
democratic processes. Storer v. Brown, 415 U.S.
724, 730; see Timmons, 520 U.S., at 358; Anderson v.
Celebrezze, 460 U.S. 780, 788.

(a) States have considerable leeway
to protect the integrity and reliability of the ballot-initiative
process, as they have with respect to election processes generally.
[N]o litmus-paper test will separate valid
ballot-access provisions from invalid interactive speech
restrictions, and this Court has come upon no substitute for
the hard judgments that must be made. Storer, 415 U.S.,
at 730. But the First Amendment requires vigilance in making those
judgments, to guard against undue hindrances to political
conversations and the exchange of ideas. See Meyer, 486 U.S.,
at 421. The Court is satisfied that, as in Meyer, the
restrictions in question significantly inhibit communication with
voters about proposed political change, and are not warranted by the
state interests (administrative efficiency, fraud detection,
informing voters) alleged to justify those restrictions. This
judgment is informed by other means Colorado employs to accomplish
its regulatory purposes. Pp. 7&emdash;8.

(b) Beyond question, Colorados
registration requirement drastically reduces the number of persons,
both volunteer and paid, available to circulate petitions. That
requirement produces a speech diminution of the very kind produced by
the ban on paid circulators at issue in Meyer. Both provisions
limi[t] the number of voices who will convey [the
initiative proponents] message and, consequently, cut
down the size of the audience [proponents] can
reach. Meyer, 486 U.S., at 422, 423.

The ease with which qualified voters may
register to vote does not lift the burden on speech at petition
circulation time. There are individuals for whom, as the trial record
shows, the choice not to register implicates political thought and
expression. The States strong interest in policing lawbreakers
among petition circulators by ensuring that circulators will be
amenable to the Secretary of States subpoena power is served by
the requirement, upheld below, that each circulator submit an
affidavit setting out, among several particulars, his or her address.
ACLF did not challenge Colorados right to require that all
circulators be residents, a requirement that more precisely achieves
the States subpoena service objective. Assuming that a
residence requirement would be upheld as a needful integrity-policing
measure&endash;a question that this Court, like the Tenth Circuit,
has no occasion to decide because the parties have not placed the
matter of residence at issue&endash;the added registration
requirement is not warranted. Pp. 8&emdash;13.

(c) The Tenth Circuit held the badge
requirement invalid insofar as it requires circulators to display
their names. The District Court found from evidence ACLF presented
that compelling circulators to wear identification badges inhibits
participation in the petitioning process. Colorados interest in
enabling the public to identify, and the State to apprehend, petition
circulators who engage in misconduct is addressed by the requirement
that circulators disclose their names and addresses on affidavits
submitted with each petition section. Unlike a name badge worn at the
time a circulator is soliciting signatures, the affidavit is
separated from the moment the circulator speaks, when reaction to the
message is immediate and may be the most intense, emotional, and
unreasoned. Because the badge requirement compels personal name
identification at the precise moment when the circulators
interest in anonymity is greatest, it does not qualify for inclusion
among the more limited [election process]
identification requirement[s] to which this Court
alluded in McIntyre, 514 U.S., at 353. Like the Tenth Circuit,
this Court expresses no opinion on the constitutionality of the
additional requirements that the badge disclose whether the
circulator is paid or volunteer, and if paid, by whom. Pp.
13&emdash;16.

(d) The Tenth Circuit invalidated
the requirement that ballot-initiative proponents file a final report
when the initiative petition is submitted insofar as that requirement
compels disclosure of each paid circulator by name and address, and
the total amount paid to each circulator. That court also rejected
compelled disclosure in monthly reports of the name and address of
each paid circulator, and the amount of money paid and owed to each
circulator during the month in question. In ruling on these
disclosure requirements, the Court of Appeals looked primarily to
this Courts decision in Buckley v. Valeo, 424
U.S. 1. In Buckley, the Court stated that exacting
scrutiny is necessary when compelled disclosure of
campaign-related payments is at issue, but nevertheless upheld, as
substantially related to important governmental interests, the
reporting and disclosure provisions of the Federal Election Campaign
Act of 1971. Mindful of Buckley, the Tenth Circuit did not
upset Colorados disclosure requirements as a whole. Notably,
the Court of Appeals upheld the States requirements for
disclosure of payors, in particular, proponents names
and the total amount they have spent to collect signatures for their
petitions. Disclosure of the names of initiative sponsors, and the
amounts they have spent to gather support for their initiatives,
responds to Colorados substantial interest in controlling
domination of the initiative process by affluent special interest
groups. The added benefit of revealing the names of paid circulators
and amounts paid to each circulator, the lower courts fairly
determined from the record as a whole, has not been demonstrated.
This Court expresses no opinion whether other monthly report
prescriptions regarding which the Tenth Circuit identified no
infirmity would, standing alone, survive review.
Pp. 16&emdash;20.

(e) Through less problematic
measures, Colorado can and does meet the States substantial
interest in regulating the ballot-initiative process. To deter fraud
and diminish corruption, Colorado retains an arsenal of safeguards.
To inform the public about the source of funding for ballot
initiatives, the State legitimately requires sponsors of ballot
initiatives to disclose who pays petition circulators, and how much.
To ensure grass roots support, Colorado conditions placement of an
initiative proposal on the ballot on the proponents submission
of valid signatures representing five percent of the total votes cast
for all candidates for Secretary of State at the previous general
election. Furthermore, in aid of efficiency, veracity, or clarity,
Colorado has provided for an array of process measures not contested
here by ACLF. P. 21.

120 F.3d 1092, affirmed.

Justice Thomas, concurring in the judgment.

When considering the constitutionality of
a state election regulation that restricts core political speech or
imposes "severe burdens" on speech or association, we have generally
required that the law be narrowly tailored to serve a compelling
state interest. But if the law imposes "lesser burdens," we have said
that the State's important regulatory interests are generally
sufficient to justify reasonable, nondiscriminatory restrictions. The
Court today appears to depart from this now-settled approach. In my
view, Colorado's badge, registration, and reporting requirements each
must be evaluated under strict scrutiny. Judged by that exacting
standard, I agree with the majority that each of the challenged
regulations violates the First and Fourteenth Amendments, and
accordingly concur only in the judgment.

I

States, of course, must regulate their
elections to ensure that they are conducted in a fair and orderly
fashion. See, e.g., Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997); Burdick v.
Takushi, 504 U.S. 428, 433 (1992). But such regulations often
will directly restrict or otherwise burden core political speech and
associational rights. To require that every voting, ballot, and
campaign regulation be narrowly tailored to serve a compelling
interest "would tie the hands of States seeking to assure that
elections are operated equitably and efficiently." Id., at
433. Consequently, we have developed (although only recently) a
framework for assessing the constitutionality, under the First and
Fourteenth Amendments, of state election laws. When a State's rule
imposes severe burdens on speech or association, it must be narrowly
tailored to serve a compelling interest; lesser burdens trigger less
exacting review, and a State's important regulatory interests are
typically enough to justify reasonable restrictions. Timmons,
supra, at 358&emdash;359; Burdick, supra, at
434; Anderson v. Celebrezze, 460 U.S. 780,
788&emdash;790 (1983).

Predictability of decisions in this area
is certainly important, but unfortunately there is no bright line
separating severe from lesser burdens. When a State's election law
directly regulates core political speech, we have always subjected
the challenged restriction to strict scrutiny and required that the
legislation be narrowly tailored to serve a compelling governmental
interest. See, e.g., Burson v. Freeman, 504 U.S.
191, 198 (1992) (Tennessee law prohibiting solicitation of voters and
distribution of campaign literature within 100 feet of the entrance
of a polling place); Brown v. Hartlage, 456 U.S. 45,
53&emdash;54 (1982) (Kentucky's regulation of candidate campaign
promises); First Nat. Bank of Boston v. Bellotti, 435
U.S. 765, 786 (1978) (Massachusetts law prohibiting certain business
entities from making expenditures for the purpose of affecting
referendum votes).

Even where a State's law does not directly
regulate core political speech, we have applied strict scrutiny. For
example, in Meyer v. Grant, 486 U.S. 414 (1988), we
considered a challenge to Colorado's law making it a felony to pay
initiative petition circulators. We applied strict scrutiny because
we determined that initiative petition circulation "of necessity
involves both the expression of a desire for political change and a
discussion of the merits of the proposed change." Id., at 421.
In Citizens Against Rent Control/Coalition for Fair Housing v.
Berkeley, 454 U.S. 290 (1981), we subjected to strict scrutiny
a city ordinance limiting contributions to committees formed to
oppose ballot initiatives because it impermissibly burdened
association and expression. Id., at 294.

When core political speech is at issue, we
have ordinarily applied strict scrutiny without first determining
that the State's law severely burdens speech. Indeed, in
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995),
the Court suggested that we only resort to our severe/lesser burden
framework if a challenged election law regulates "the mechanics of
the electoral process," not speech. Id., at 345; but see
Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214, 222&emdash;223 (1989) (first determining that
California's prohibition on primary endorsements by the official
governing bodies of political parties burdened speech and association
and then applying strict scrutiny). I suspect that when regulations
of core political speech are at issue it makes little difference
whether we determine burden first because restrictions on core
political speech so plainly impose a "severe burden."

When an election law burdens voting and
associational interests, our cases are much harder to predict, and I
am not at all sure that a coherent distinction between severe and
lesser burdens can be culled from them. For example, we have
subjected to strict scrutiny Connecticut's requirement that voters in
any party primary be registered members of that party because it
burdened the "associational rights of the Party and its members."
Tashjian v. Republican Party of Conn., 479 U.S. 208,
217 (1986). We similarly treated California's laws dictating the
organization and composition of official governing bodies of
political parties, limiting the term of office of a party chair, and
requiring that the chair rotate between residents of northern and
southern California because they "burden[ed] the
associational rights of political parties and their members,"
Eu, supra, at 231. In Storer v. Brown,
415 U.S. 724 (1974), we applied strict scrutiny to California's law
denying a ballot position to independent candidates who had a
registered affiliation with a qualified political party within a year
of the preceding primary election, apparently because it
"substantially" burdened the rights to vote and associate.
Id., at 729, 736.1 And in Norman v.
Reed, 502 U.S. 279 (1992), we determined that Illinois'
regulation of the use of party names and its law establishing
signature requirements for nominating petitions severely burdened
association by limiting new parties' access to the ballot, and held
both challenged laws, as construed by the State Supreme Court,
unconstitutional because they were not narrowly tailored. Id.,
at 288&emdash;290, 294. By contrast, we determined that Minnesota's
law preventing a candidate from appearing on the ballot as the choice
of more than one party burdened a party's access to the ballot and
its associational rights, but not severely, and upheld the ban under
lesser scrutiny. Timmons, 520 U.S., at 363. We likewise upheld
Hawaii's prohibition on write-in voting, which imposed, at most, a
"very limited" burden on voters' freedom of choice and association.
Burdick, 504 U.S., at 437.

II

Colorado argues that its badge,
registration, and reporting requirements impose "lesser" burdens, and
consequently, each ought to be upheld as serving important State
interests. I cannot agree.

A

The challenged badge requirement, Colo.
Rev. Stat.
§1&emdash;40&emdash;112(2), directly regulates the content of
speech. The State requires that all petition circulators disclose, at
the time they deliver their political message, their names and
whether they were paid or unpaid. Therefore, the regulation must be
evaluated under strict scrutiny. Moreover, the category of burdened
speech is defined by its content&endash;Colorado's badge requirement
does not apply to those who circulate candidate petitions, only to
those who circulate initiative or referendum proposals. See generally
Colo. Rev. Stat. §1&emdash;4&emdash;905 (candidate petition
circulation requirements). Content-based regulation of speech
typically must be narrowly tailored to a compelling state interest.
See, e.g., Boos v. Barry, 485 U.S. 312, 321
(1988). The State's dominant justification for its badge requirement
is that it helps the public to identify, and the State to apprehend,
petition circulators who perpetrate fraud. Even assuming that this is
a compelling interest, plainly, this requirement is not narrowly
tailored. It burdens all circulators, whether they are responsible
for committing fraud or not. In any event, the State has failed to
satisfy its burden of demonstrating that fraud is a real, rather than
a conjectural, problem. See Turner Broadcasting System, Inc.
v. FCC, 512 U.S. 622, 664 (1994); Colorado Republican
Federal Campaign Comm. v. Federal Election Comm'n, 518
U.S. 604, 647 (1996) (Thomas, J., concurring in judgment and
dissenting in part).2

B

Although Colorado's registration
requirement, Colo. Rev. Stat. §1&emdash;40&emdash;112(1), does
not directly regulate speech, it operates in the same fashion
that Colorado's prohibition on paid circulators did in
Meyer&endash;the requirement reduces the voices available to
convey political messages. We unanimously concluded in Meyer
that initiative petition circulation was core political speech. 486
U.S., at 421&emdash;422. Colorado's law making it a felony to pay
petition circulators burdened that political expression, we said,
because it reduced the number of potential speakers. That reduction
limited the size of the audience that initiative proponents and
circulators might reach, which in turn made it less likely that
initiative proposals would garner the signatures necessary to qualify
for the ballot. Id., at 422&emdash;423. I see no reason to
revisit our earlier conclusion. The aim of a petition is to secure
political change, and the First Amendment, by way of the Fourteenth
Amendment, guards against the State's efforts to restrict free
discussions about matters of public concern.3

Colorado primarily defends its
registration requirement on the ground that it ensures that petition
circulators are residents, which permits the State to more
effectively enforce its election laws against those who violate
them.4 The Tenth Circuit assumed, and so do I, that the
State has a compelling interest in ensuring that all circulators are
residents. Even so, it is clear, as the Court of Appeals decided,
that the registration requirement is not narrowly tailored. A large
number of Colorado's residents are not registered voters, as the
majority points out, ante, at 8&emdash;9, and the State's
asserted interest could be more precisely achieved through a
residency requirement.5

C

The District Court and the Court of
Appeals both suggested that by forcing proponents to identify paid
circulators by name, the reports made it less likely that persons
would want to circulate petitions. Therefore, both concluded, the
reporting requirement had a chilling effect on core political speech
similar to the one we recognized in Meyer. American
Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d
1092 1096 (CA 10 1997); American Constitutional Law Foundation,
Inc. v. Meyer, 870 F. Supp. 955, 1003 (Colo. 1994).
The District Court additionally determined that preparation of the
required monthly reports was burdensome for and involved additional
expense to those supporting an initiative petition. Ibid.

In my view, the burdens that the reporting
requirement imposes on circulation are too attenuated to constitute a
"severe burden" on core political speech. However, "compelled
disclosure, in itself, can seriously infringe on privacy of
association and belief guaranteed by the First Amendment."
Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per
curiam). In Buckley, because the disclosure requirements
of the Federal Election Campaign Act of 1971 encroached on
associational rights, we required that they pass a "strict test."
Id., at 66. The same associational interests are burdened by
the State's reporting requirements here, and they must be evaluated
under strict scrutiny.

Colorado argues that the "essential
purpose" of the reports is to identify circulators. Brief for
Petitioner 44. It also claims that its required reports are designed
to provide "the press and the voters of Colorado a more complete
picture of how money is being spent to get a measure on the ballot."
Ibid. Even assuming that Colorado has a compelling interest in
identifying circulators, its law does not serve that interest. The
State requires that proponents identify only the names of paid
circulators, not all circulators. The interest in requiring a
report as to the money paid to each circulator by name, as the
majority points out, ante, at 17, has not been
demonstrated.

The State contends that its asserted
interest in providing the press and the electorate with information
as to how much money is spent by initiative proponents to advance a
particular measure is similar to the governmental interests in
providing the electorate with information about how money is spent by
a candidate and where it comes from, and in deterring actual
corruption and avoiding the appearance of corruption that we
recognized in Buckley, supra, at 66&emdash;67. However,
we have suggested that ballot initiatives and candidate elections
involve different considerations. Bellotti, 435 U.S., at
791&emdash;792 ("[T]he people in our democracy are entrusted
with the responsibility for judging and evaluating the relative
merits of conflicting arguments . [I]f there be
any danger that the people cannot evaluate the information and
arguments advanced by [one source], it is a danger
contemplated by the Framers of the First Amendment"); see also
Citizens Against Rent Control, 454 U.S., at 296&emdash;298.
Indeed, we recognized in Meyer that "the risk of improper
conduct is more remote at the petition stage of an
initiative." 486 U.S., at 427. Similarly, I would think, at the very
least, the State's interest in informing the public of the financial
interests behind an initiative proposal is not compelling during the
petitioning stage.

As it stands after the lower court
decisions, proponents must disclose the amount paid per petition
signature and the total amount paid to each circulator, without
identifying each circulator, at the time the petition is filed.
Monthly disclosures are no longer required.6 Because the
respondents did not sufficiently brief the question, I am willing to
assume, for purposes of this opinion, that Colorado's interest in
having this information made available to the press and its
voters&endash;before the initiative is voted upon, but not during
circulation&endash;is compelling. The reporting provision as modified
by the courts below ensures that the public receives information
demonstrating the financial support behind an initiative proposal
before voting.

I recognize that in Buckley,
although the Court purported to apply strict scrutiny, its
formulation of that test was more forgiving than the traditional
understanding of that exacting standard. The Court merely required
that the disclosure provisions have a "substantial relation," 424
U.S., at 64, to a "substantial" government interest, id., at
68.7 (The majority appears to dilute Buckley's
formulation even further, stating that Colorado's reporting
requirement must be "substantially related to important governmental
interests." Ante, at 17.) To the extent that Buckley
suggests that we should apply a relaxed standard of scrutiny, it is
inconsistent with our state election law cases that require the
application of traditional strict scrutiny whenever a state law
"severely burdens" association, and I would not adhere to it. I would
nevertheless decide that the challenged portions of Colorado's
disclosure law are unconstitutional as evaluated under the
Buckley standard.

To conclude, I would apply strict scrutiny
to each of the challenged restrictions, and would affirm the judgment
of the Court of Appeals as to each of the three provisions before us.
As the majority would apply different reasoning, I concur only in the
Court's judgment.

Notes

1. Although we did not explicitly apply strict scrutiny in
Storer, we said that the State's interest was "not only
permissible, but compelling" and that the device the State chose was
"an essential part of its overall mechanism." 415 U.S., at 736.

2. The majority is correct to note, ante, at
15&emdash;16, that the Tenth Circuit declined to address whether
Colorado's requirement that the badge disclose whether a circulator
is paid or a volunteer, and if paid, the name and telephone number of
the payer, would be constitutionally permissible standing
alone. Nevertheless, the District Court invalidated
§1&emdash;40&emdash;112(2) in its entirety, American
Constitutional Law Foundation, Inc. v. Meyer, 870
F. Supp. 955, 1005 (Colo. 1994), and the Court of Appeals
affirmed that decision in full. American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092, 1096 (CA 10
1997).

3. There is anecdotal
evidence in the briefs that circulators do not discuss the merits of
a proposed change by initiative in any great depth. Indeed, National
Voter Outreach, Inc., an amicuscuriae in support of
respondents and, according to its statement of interest, the largest
organizer of paid petition circulation drives in the United States,
describes most conversations between circulator and prospective
petition signer as "brief." Brief for National Voter Outreach, Inc.,
as Amicus Curiae 21. It gives an example of the typical
conversation: "Here, sign this. It will really [tick off
California Governor] Pete Wilson." Id., at 21, n. 17.
In my view, the level of scrutiny cannot turn on the content or
sophistication of a political message. Cf. Colorado Republican
Federal Campaign Comm'n v. Federal Election Comm'n, 518
U.S. 604, 640 (1996) ("Even a pure message of support, unadorned with
reasons, is valuable to the democratic process").

4. Colorado's law requires that petition circulators be
registered electors, Colo. Rev. Stat.
§1&emdash;40&emdash;112(1), and while one must reside in
Colorado in order to be a registered voter,
§1&emdash;2&emdash;101(1)(b), Colorado does not have a separate
residency requirement for petition circulators at this time.

5. Whatever the merit of the views expressed by The Chief
Justice, post, at 2, 5, the State did little more than mention
in passing that it had an interest in having its own voters decide
what issues should go on the ballot. See Brief for Petitioner 31.

6. The Court of Appeals did not specifically identify any
constitutional problem with the monthly reports to the extent that
they require disclosure of proponents' names and proposed ballot
measures for which persons were paid to circulate petitions. But the
District Court invalidated the entire monthly reporting requirement,
870 F. Supp., at 1005, and the Court of Appeals affirmed its
decision in full. See 120 F.3d, at 1096.

7. I have previously noted that the Court in Buckley
seemed more forgiving in its review of the contribution provisions
than it was with respect to the expenditure rules at issue, even
though we purported to strictly scrutinize both. Colorado
Republican, 518 U.S., at 640, n. 7 (Thomas, J., concurring
in judgment and dissenting in part).

Justice O'Connor, with whom Justice Breyer joins,
concurring in the judgment in part and dissenting in part.

Petition circulation undoubtedly has a
significant political speech component. When an initiative petition
circulator approaches a person and asks that person to sign the
petition, the circulator is engaging in "interactive communication
concerning political change." Meyer v. Grant, 486 U.S.
414, 422 (1988). It was the imposition of a direct and substantial
burden on this one-on-one communication that concerned us in
Meyer v. Grant. To address this concern, we held in
that case that regulations directly burdening the one-on-one,
communicative aspect of petition circulation are subject to strict
scrutiny. Id., at 420.

Not all circulation-related regulations
target this aspect of petition circulation, however. Some regulations
govern the electoral process by directing the manner in which an
initiative proposal qualifies for placement on the ballot. These
latter regulations may indirectly burden speech but are a step
removed from the communicative aspect of petitioning and are
necessary to maintain an orderly electoral process. Accordingly,
these regulations should be subject to a less exacting standard of
review.

In this respect, regulating petition
circulation is similar to regulating candidate elections. Regulations
that govern a candidate election invariably burden to some degree
one's right to vote and one's right to associate for political
purposes. Such restrictions are necessary, however, "if
[elections] are to be fair and honest." Storer v.
Brown, 415 U.S. 724, 730 (1974). To allow for regulations of
this nature without overly burdening these rights, we have developed
a flexible standard to review regulations of the electoral process.
The Court succinctly described this standard in Burdick v.
Takushi, 504 U.S. 428, 434 (1992):

"[W]hen [First and Fourteenth Amendment] rights
are subjected to severe restrictions, the regulation must be narrowly
drawn to advance a state interest of compelling importance. But when
a state election law provision imposes only reasonable,
nondiscriminatory restrictions upon the First and Fourteenth
Amendment rights of voters, the State's important regulatory
interests are generally sufficient to justify the restrictions."
Id., at 434 (internal quotation marks and citations
omitted).

Applying this test, in Burdick, we upheld as reasonable
Hawaii's prohibition on write-in voting, holding that it imposed only
a limited burden upon the constitutional rights of voters. See
id., at 433&emdash;441. See also Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 362&emdash;370 (1997)
(upholding Minnesota law that banned fusion candidacies on the ground
that the State had asserted a "sufficiently weighty" interest). The
application of this flexible standard was not without precedent.
Prior to Burdick, the Court applied a test akin to rational
review to regulations that governed only the administrative aspects
of elections. See Rosario v. Rockefeller, 410 U.S. 752,
756&emdash;762 (1973) (upholding requirement that voters enroll as
members of a political party prior to voting in a primary election on
the ground that the regulation did not impose an onerous burden and
advanced a legitimate state
interest).

Under the Burdick approach, the
threshold inquiry is whether Colorado's regulations directly and
substantially burden the one-on-one, communicative aspect of petition
circulation or whether they primarily target the electoral process,
imposing only indirect and less substantial burdens on communication.
If the former, the regulation should be subject to strict scrutiny.
If the latter, the regulation should be subject to review for
reasonableness.

I

I agree with the Court that requiring
petition circulators to wear identification badges, specifically name
badges, see Colo. Rev. Stat. §1&emdash;40&emdash;112(2)(b)
(1998), should be subject to, and fails, strict scrutiny. Requiring
petition circulators to reveal their names while circulating a
petition directly regulates the core political speech of petition
circulation. The identification badge introduces into the one-on-one
dialogue of petition circulation a message the circulator might
otherwise refrain from delivering, and the evidence shows that it
deters some initiative petition circulators from disseminating their
messages. Under the logic of Meyer, the regulation is subject
to more exacting scrutiny. As explained by the Court, see ante,
at 12&emdash;14, Colorado's identification badge requirement
cannot survive this more demanding standard of review because the
requirement is not narrowly tailored to satisfy Colorado's interest
in identifying and apprehending petition circulators who engage in
misconduct. I also agree that whether Colorado's other badge
requirement&emdash;that the badges identify initiative petition
circulators as paid or volunteer&emdash;is constitutional is a
question that the court below did not resolve, and this issue is not
properly before us. See ante, at 12. Accordingly, like the
Court, I do not address it.

II

Unlike the majority, however, I believe
that the requirement that initiative petition circulators be
registered voters, see Colo. Rev. Stat.
§1&emdash;40&emdash;112(1) (1998), is a permissible regulation
of the electoral process. It is indeed a classic example of this type
of regulation. We have upheld analogous restrictions on
qualifications to vote in a primary election and on candidate
eligibility as reasonable regulations of the electoral process. See
Rosario v. Rockefeller, supra, at 756&emdash;762
(upholding qualifications to vote in primary); Storer v.
Brown, supra, at 728&emdash;737 (upholding candidate
eligibility requirement). As the Chief Justice observes, Colorado's
registration requirement parallels the requirements in place in at
least 19 States and the District of Columbia that candidate petition
circulators be electors, see post, at 7, and the requirement
of many States that candidates certify that they are registered
voters. Like these regulations, the registration requirement is a
neutral qualification for participation in the petitioning
process.

When one views the registration
requirement as a neutral qualification, it becomes apparent that the
requirement only indirectly and incidentally burdens the
communicative aspects of petition circulation. By its terms, the
requirement does not directly prohibit otherwise qualified initiative
petition circulators from circulating petitions. Cf. Rosario
v. Rockefeller, supra, at 758 (holding that time limits on
enrollment in political parties did not violate the right of
association because individuals were not prohibited from enrolling in
parties). Moreover, as the Chief Justice illustrates in his dissent,
this requirement can be satisfied quite easily. See post,at 3. The requirement, indeed, has been in effect in Colorado
since 1980, see American Constitutional Law Foundation, Inc.
v. Meyer, 870 F. Supp. 995, 999 (Colo. 1994), with no
apparent impact on the ability of groups to circulate petitions, see
2 Tr. 159 (testimony of Donetta Davidson that the number of
initiative proposals placed on the ballot has increased over the past
few years).

In this way, the registration requirement
differs from the statute held unconstitutional in Meyer.
There, we reviewed a statute that made it unlawful to pay petition
circulators, see Meyer v. Grant, 486 U.S.,at
417, and held that the statute directly regulated and substantially
burdened speech by excluding from petition circulation a class of
actual circulators that were necessary "to obtain the required number
of signatures within the allotted time." Ibid. That is, the
statute directly silenced voices that were necessary, and "able and
willing" to convey a political message. Id., at
422&emdash;423, and n. 6. In contrast, the registration
requirement does not effect a ban on an existing class of circulators
or, by its terms, silence those who are "able and willing" to
circulate ballot initiative petitions. Indeed, it does not appear
that the parties to this litigation needed unregistered but
voter-eligible individuals to disseminate their political messages.
Cf. id., at 417.

The respondents have offered only slight
evidence to suggest that the registration requirement negatively
affects the one-on-one, communicative aspect of petition circulation.
In particular, the respondents argue that the registration
requirement burdens political speech because some otherwise-qualified
circulators do not register to vote as a form of political protest.
See ante, at 11. Yet the existence and severity of this burden
is not as clearly established in the record as the respondents, or
the Court, suggests.

For example, witness Jack Hawkins, whose
testimony the Court cites for the proposition that "the choice not to
register implicates political thought and expression," see
ibid., did not testify that anyone failed to register to vote
as a political statement. He responded "[y]es, that's true"
to the leading question "are there individuals who would circulate
your petition who are non-registered voters because of their
political choice?" 1 Tr. 14. But he went on to explain this
"political choice" as follows:

"They have interesting views of why they don't want to register to
vote. They're under a misconception that they won't be called for
jury duty if they're not registered to vote and they're really
concerned about being a jurist, but in Colorado you can be a
jurist if you drive a car or pay taxes or anything else. So, they're
under a misconception, but I can't turn them around on that." Id.,
at 15&emdash;16 (emphasis supplied).

Likewise, witness Jon Baraga, who testified that some potential
circulators are not registered to vote because they feel the
political process is not responsive to their needs, see ante,
at 11, went on to testify that many of the same people would register
to vote if an initiative they supported were placed on the ballot.
See 1 Tr. 58. Considered as a whole, this testimony does not
establish that the registration requirement substantially burdens
alternative forms of political expression.

Because the registration requirement
indirectly and incidentally burdens the one-on-one, communicative
aspect of petition circulation, Burdick requires that it
advance a legitimate state interest to be a reasonable regulation of
the electoral process. Colorado maintains that the registration
requirement is necessary to enforce its laws prohibiting circulation
fraud and to guarantee the State's ability to exercise its subpoena
power over those who violate these laws, see ante, at 11, two
patently legitimate interests. See, e.g.,Timmons v.
Twin Cities Area New Party, 520 U.S., at 366&emdash;367;
Schaumburg v. Citizens for a Better Environment, 444
U.S. 620, 636&emdash;637 (1980). In the past, Colorado has had
difficulty enforcing its prohibition on circulation fraud, in
particular its law against forging petition signatures, because
violators fled the State. See 2 Tr. 115 (testimony of Donetta
Davidson). Colorado has shown that the registration requirement is an
easy and a verifiable way to ensure that petition circulators fall
under the State's subpoena power. See Tr. of Oral Arg. 14; see also
Appellee's Supplemental App. in Nos. 94&emdash;1576 and
94&emdash;1581 (CA10), p. 268 (describing requirement that
signatories be registered voters as necessary for verification of
signatures). For these reasons, I would uphold the requirement as a
reasonable regulation of Colorado's electoral process.

III

Most disturbing is the Court's holding
that Colorado's disclosure provisions are partially unconstitutional.
Colorado requires that ballot-initiative proponents file two types of
reports: monthly reports during the period of circulation and a final
report when the initiative petition is submitted. See Colo. Rev.
Stat. §1&emdash;40&emdash;121 (1998). The monthly reports must
include the names of paid circulators, their business and residential
addresses, and the amount of money paid and owed to each paid
circulator during the relevant month. See
§1&emdash;40&emdash;121(2). The final report also must include
the paid circulators' names and addresses, as well as the total
amount paid to each circulator. See §1&emdash;40&emdash;121(1).
The Tenth Circuit invalidated the reports to the extent they revealed
this information. See ante, at 16. The Court affirms this
decision, without expressing an opinion on the validity of the
reports to the extent they reveal other information, on the ground
that forcing the proponents of ballot initiatives to reveal the
identities of their paid circulators is tenuously related to the
interests disclosure serves and impermissibly targets paid
circulators. See ante, at 18&emdash;19. I, however, would
reverse the Tenth Circuit on the ground that Colorado's disclosure
provision is a reasonable regulation of the electoral process.

Colorado's disclosure provision is a step
removed from the one-on-one, communicative aspects of petition
circulation, and it burdens this communication in only an incidental
manner. Like the mandatory affidavit that must accompany every set of
signed petitions, the required disclosure reports "revea[l]
the name of the petition circulator and [are] public
record[s] [, but are] separated from the
moment the circulator speaks," see ante, at 13&emdash;14. This
characteristic indeed makes the disclosure reports virtually
indistinguishable from the affidavit requirement, which the Court
suggests is a permissible regulation of the electoral process, see
ante, at 15, and similarly lessens any chilling effect the
reports might have on speech, see ante, at 14 (observing that
injury to speech is heightened when disclosure is made at the moment
of speech). If anything, the disclosure reports burden speech less
directly than the affidavits because the latter are completed by the
petition circulator, while the former are completed by the initiative
proponent and thus are a step removed from petition circulation. In
fact, the Court does not suggest that there is any record evidence
tending to show that such remote disclosure will deter the
circulation of initiative petitions. To the extent the disclosure
requirements burden speech, the burden must be viewed as incremental
and insubstantial in light of the affidavit requirement, which also
reveals the identity of initiative petition circulators.

As a regulation of the electoral process
with an indirect and insignificant effect on speech, the disclosure
provision should be upheld so long as it advances a legitimate
government interest. Colorado's asserted interests in combating fraud
and providing the public with information about petition circulation
are surely sufficient to survive this level of review. These are
among the interests we found to be substantial in Buckley v.
Valeo. See 424 U.S. 1, 67, 68 (1976) (per curiam)
(holding that the Government has a substantial interest in
requiring candidates to disclose the sources of campaign
contributions to provide the electorate with information about "the
interests to which a candidate is most likely to be responsive," to
"deter actual corruption and avoid the appearance of corruption," and
"to detect violations of the contribution limitations"). Moreover, it
is scarcely debatable that, as a general matter, financial disclosure
effectively combats fraud and provides valuable information to the
public. We have recognized that financial disclosure requirements
tend to discourage those who are subject to them from engaging in
improper conduct, and that "[a] public armed with information
is better able to detect" wrongdoing. See id., at 67;
see also Grosjean v. American Press Co., 297 U.S. 233,
250 (1936) (observing that an "informed public opinion is the most
potent of all restraints upon misgovernment"). "'Publicity is justly
commended as a remedy for social and industrial diseases. Sunlight is
said to be the best of disinfectants; electric light the most
efficient policeman.'" Buckley v. Valeo, supra, at 67,
and n. 80 (quoting L. Brandeis, Other People's Money 62 (1933)).
"[I]n the United States, for half a century compulsory
publicity of political accounts has been the cornerstone of legal
regulation. Publicity is advocated as an automatic regulator,
inducing self-discipline among political contenders and arming the
electorate with important information." H. Alexander & B.
Haggerty, The Federal Election Campaign Act: After a Decade of
Political Reform 37 (1981). "'[T]otal disclosure'" has been
recognized as the "'essential cornerstone'" to effective campaign
finance reform, id., at 39, and "fundamental to the political
system," H. Alexander, Financing Politics: Money, Elections and
Political Reform 164 (4th ed. 1992).

In light of these many and substantial
benefits of disclosure, we have upheld regulations requiring
disclosure and reporting of amounts spent by candidates for election,
amounts contributed to candidates, and the names of contributors, see
Buckley v. Valeo, 424 U.S., at 60&emdash;84, while
holding that the First Amendment protects the right of the political
speaker to spend his money to amplify his speech, see id., at
44&emdash;59. Indeed, laws requiring the disclosure of the names of
contributors and the amounts of their contributions are common to all
States and the Federal Government. See id., at 62&emdash;64
(describing disclosure provisions of Federal Election Campaign Act of
1971); Alexander, supra, at 135 ("All fifty states have some
disclosure requirements, and all except two [South Carolina and
Wyoming] call for both pre- and post-election reporting of
contributions and expenditures"). Federal disclosure laws were first
enacted in 1910, and early laws, like Colorado's current provision,
required the disclosure of the names of contributors and the
recipients of expenditures. See Buckley v. Valeo, 424
U.S., at 61. Such public disclosure of the amounts and sources of
political contributions and expenditures assists voters in making
intelligent and knowing choices in the election process and helps to
combat fraud.

The recognized benefits of financial
disclosure are equally applicable in the context of petition
circulation. Disclosure deters circulation fraud and abuse by
encouraging petition circulators to be truthful and self-disciplined.
See generally id., at 67. The disclosure required here
advances Colorado's interest in law enforcement by enabling the State
to detect and to identify on a timely basis abusive or fraudulent
circulators. Moreover, like election finance reporting generally,
Colorado's disclosure reports provide facts useful to voters who are
weighing their options. Members of the public deciding whether to
sign a petition or how to vote on a measure can discover who has
proposed it, who has provided funds for its circulation, and to whom
these funds have been provided. Knowing the names of paid circulators
and the amounts paid to them also allows members of the public to
evaluate the sincerity or, alternatively, the potential bias of any
circulator that approaches them. In other words, if one knows a
particular circulator is well paid, one may be less likely to believe
the sincerity of the circulator's statements about the initiative
proposal. The monthly disclosure reports are public records available
to the press and public, see Brief for Petitioner 44, are
"contemporaneous with circulation," American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092, 1105 (CA10
1997), and are more accessible than the other "masses of papers filed
with the petitions," see 870 F. Supp., at 1004.

It is apparent from the preceding
discussion that, to combat fraud and to inform potential signatories
in a timely manner, disclosure must be made at the time people are
being asked to sign petitions and before any subsequent vote on a
measure that qualifies for the ballot. It is, indeed, during this
period that the need to deter fraud and to inform the public of the
forces motivating initiative petitions "is likely to be at its peak
; [this] is the time when improper influences are
most likely to be brought to light." Buckley v. Valeo,
supra, at 68, n. 82. Accordingly, the monthly reports, which are
disseminated during the circulation period and are available to the
press, see Brief for Petitioner 44, uniquely advance Colorado's
interests. The affidavit requirement is not an effective substitute
because the affidavits are not completed until after all signatures
have been collected and thus after the time that the information is
needed. See Colo. Rev. Stat. §1&emdash;40&emdash;111(2) (1998)
("Any signature added to a section of a petition after the affidavit
has been executed shall be invalid"). In addition, the public's
access to the affidavits is generally more restricted than its access
to monthly disclosure reports, for as the District Court found, the
public will have "greater difficulty in finding [the] names
and addresses [of petition circulators] in the masses of
papers filed with the petitions as compared with the monthly
reports." 870 F. Supp., at 1004.

To be sure, Colorado requires disclosure
of financial information about only paid circulators. But, contrary
to the Court's assumption, see ante, at 18, this targeted
disclosure is permissible because the record suggests that paid
circulators are more likely to commit fraud and gather false
signatures than other circulators. The existence of occasional fraud
in Colorado's petitioning process is documented in the record. See 2
Tr. 197&emdash;198 (testimony of retired FBI agent Theodore P.
Rosack); id., at 102, 104&emdash;116 (testimony of Donetta
Davidson). An elections officer for the State of Colorado testified
that only paid circulators have been involved in recent fraudulent
activity, see id., at 150&emdash;151 and 161 (testimony of
Donetta Davidson); see also id., at 197&emdash;198 (testimony
of Theodore P. Rosack) (describing recent investigation of fraud in
which only paid circulators were implicated). Likewise, respondent
William C. Orr, the executive director of the American Constitutional
Law Foundation, Inc., while examining a witness, explained to the
trial court that "volunteer organizations, they're self-policing and
there's not much likelihood of fraud . Paid circulators
are perhaps different." Id., at 208&emdash;209.

Because the legitimate interests asserted
by Colorado are advanced by the disclosure provision and outweigh the
incidental and indirect burden that disclosure places on political
speech, I would uphold the provision as a reasonable regulation of
the electoral process. Colorado's interests are more than legitimate,
however. We have previ-

ously held that they are substantial. See Buckley v. Valeo,
supra, at 67, 68. Therefore, even if I thought more exacting
scrutiny were required, I would uphold the disclosure
requirements.

Because I feel the Court's decision
invalidates permissible regulations that are vitally important to the
integrity of the political process, and because the decision
threatens the enforceability of other important and permissible
regulations, I concur in the judgment only in part and dissent in
part.

The Court today invalidates a number of
state laws designed to prevent fraud in the circulation of candidate
petitions and to ensure that local issues of state law are decided by
local voters, rather than by out-of-state interests. Because I
believe that Colorado can constitutionally require that those who
circulate initiative petitions to registered voters actually
be registered voters themselves, and because I believe that
the Court's contrary holding has wide-reaching implication for state
regulation of elections generally, I dissent.

I

Ballot initiatives of the sort involved in
this case were a central part of the Progressive movement's agenda
for reform at the turn of the 20th century, and were advanced as a
means of limiting the control of wealthy special interests and
restoring electoral power to the voters. See, e.g., H. Croly,
Progressive Democracy 236&emdash;237, 248&emdash;249, 254&emdash;255
(Transaction ed. 1998); H. Steele Commager, The American Mind 338
(1950); Persily, The Peculiar Geography of Direct Democracy, 2 Mich.
L. & Pol'y Rev. 11, 23 (1997). However, in recent years, the
initiative and referendum process has come to be more and more
influenced by out-of-state interests which employ professional firms
doing a nationwide business. See, e.g., Lowenstein &
Stern, The First Amendment and Paid Initiative Petition Circulators,
17 Hastings Const. L. Q. 175, 176 (1989); Broder, Ballot Battle,
Washington Post, Apr. 12, 1998, pp. A1, A6; Slind-Flor,
Election Result: Litigation over Propositions, National Law Journal,
Nov. 16, 1998, pp. A1, A8. The state laws that the Court strikes down
today would restore some of this initial purpose by limiting the
influence that such out-of-state interests may have on the in-state
initiative process. The ironic effect of today's opinion is that, in
the name of the First Amendment, it strikes down the attempt of a
State to allow its own voters (rather than out-of-state persons and
political dropouts) to decide what issues should go on the ballot to
be decided by the State's registered voters.

The basis of the Court's holding is that
because the state laws in question both (1) decrease the pool of
potential circulators and (2) reduce the chances that a measure would
gather signatures sufficient to qualify for the ballot, the measure
is unconstitutional under our decision in Meyer v.
Grant, 486 U.S. 414 (1988). See ante, at 9&emdash;10.
Meyer, which also dealt with Colorado's initiative
regulations, struck down a criminal ban on all paid petition
circulators. 486 U.S., at 428. But Meyer did not decide that a
State cannot impose reasonable regulations on such circulation.
Indeed, before today's decision, it appeared that under our case law
a State could have imposed reasonable regulations on the circulation
of initiative petitions, so that some order could be established over
the inherently chaotic nature of democratic processes. Cf. Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997);
Burdick v. Takushi, 504 U.S. 428, 433 (1992); Storer
v. Brown, 415 U.S. 724, 730 (1974). Today's opinion,
however, calls into question the validity of any regulation of
petition circulation which runs afoul of the highly abstract and
mechanical test of diminishing the pool of petition circulators or
making a proposal less likely to appear on the ballot. See
ante, at 9&emdash;10. It squarely holds that a State may not
limit circulators to registered voters, and maintains a sphinx-like
silence as to whether it may even limit circulators to state
residents.

II

Section 1&emdash;40&emdash;112(1) of
Colorado's initiative petition law provides that "[n]o
section of a petition for any initiative or referendum measure shall
be circulated by any person who is not a registered elector and at
least eighteen years of age at the time the section is circulated."
Colo. Rev. Stat. §1&emdash;40&emdash;112(1) (1998). This
requirement is obviously intended to ensure that the people involved
in getting a measure placed on the ballot are the same people who
will ultimately vote on that measure&endash;the electors of the
State. Indeed, it is difficult to envision why the State cannot do
this, but for the unfortunate dicta in Meyer. The parties
agree that for purposes of this appeal there are 1.9 million
registered voters in Colorado, and that 400,000 persons eligible to
vote are not registered. See ante, at 8. But registering to
vote in Colorado is easy&endash;the only requirements are that a
person be 18 years of age or older on the date of the next election,
a citizen of the United States, and a resident of the precinct in
which the person will vote 30 days immediately prior to the election.
See Colo. Rev. Stat. §1&emdash;2&emdash;101 (1998). The elector
requirement mirrors Colorado's regulation of candidate elections, for
which all delegates to county and state assemblies must be registered
electors, §1&emdash;4&emdash;602(5), and where candidates cannot
be nominated for a primary election unless they are registered
electors, §1&emdash;4&emdash;601(4)(a).

The Court, however, reasons that the
restriction of circulation to electors fails to pass scrutiny under
the First Amendment because the decision not to register to vote
"implicates political thought and expression." Ante, at 11.
Surely this can be true of only a very few of the many residents who
don't register to vote, but even in the case of the few it should not
invalidate the Colorado requirement. Refusing to read current
newspapers or to watch television may have "First Amendment
implications," but this does not mean that a state university might
not refuse to hire such a person to teach a course in "today's
media." The examples of unregistered people who wish to circulate
initiative petitions presented by the respondents (and relied upon by
the Court) are twofold1&endash;people who refuse to
participate in the political process as a means of protest, and
convicted drug felons who have been denied the franchise as part of
their punishment. For example, respondent Bill Orr, apparently the
mastermind of this litigation, argued before the District Court that
"It's my form of private and public protest. I don't believe
that representative organs of Government are doing what they're
supposed to be doing." 1 Tr. 223. And respondent Jon Baraga, a person
affiliated with the "Colorado Hemp Initiative," which seeks to
legalize marijuana in Colorado, testified that "there are a great
many folks who are refused to participate as registered voters in the
political process who would like to see our measure gain ballot
status and would like to help us do that." Id., at 57.

Thus, the Court today holds that a State
cannot require that those who circulate the petitions to get
initiatives on the ballot be electors, and that a State is
constitutionally required to instead allow those who make no effort
to register to vote&endash;political dropouts&endash;and convicted
drug dealers to engage in this electoral activity. Although the Court
argues that only those eligible to vote may now circulate candidate
petitions, there is no Colorado law to this effect. Such a law would
also be even harder to administer than one which limited circulation
to residents, because eligible Colorado voters are that subset of
Colorado residents who have fulfilled the requirements for
registration, and have not committed a felony or been otherwise
disqualified from the franchise. A State would thus have to perform a
background check on circulators to determine if they are not felons.
And one of the reasons the State wished to limit petition circulation
to electors in the first place was that it is far easier to determine
who is an elector from who is a resident, much less who is "voter
eligible."2

In addition, the Court does not adequately
explain what "voter eligible" means. If it means "eligible to vote in
the State for which the petitions are circulating" (Colorado, in this
case), then it necessarily follows from today's holding that a State
may limit petition circulation to its own residents. I would not
quarrel with this holding. On the other hand, "voter eligible" could
mean "any person eligible to vote in any of the United States or its
territories." In this case, a State would not merely have to run a
background check on out of state circulators, but would also have to
examine whether the unregistered circulator had satisfied whatever
are the criteria for voter eligibility in his place of residence, be
it Georgia or Guam, Peoria or Puerto Rico.

State ballot initiatives are a matter of
state concern, and a State should be able to limit the ability to
circulate initiative petitions to those people who can ultimately
vote on those initiatives at the polls. If eligible voters make the
conscious decision not to register to vote on the grounds that they
reject the democratic process, they should have no right to complain
that they cannot circulate initiative petitions to people who
are registered voters. And the idea that convicted drug felons
who have lost the right to vote under state law nonetheless have a
constitutional right to circulate initiative petitions scarcely
passes the "laugh test."

But the implications of today's holding
are even more stark than its immediate effect. Under the Court's
interpretation of Meyer, any ballot initiative regulation is
unconstitutional if it either diminishes the pool of people who can
circulate petitions or makes it more difficult for a given issue to
ultimately appear on the ballot. See ante, at 9&emdash;10.
Thus, while today's judgment is ostensibly circumscribed in scope, it
threatens to invalidate a whole host of historically established
state regulations of the electoral process in general. Indeed, while
the Court is silent with respect to whether a State can limit
initiative petition circulation to state residents, the implication
of its reading of Meyer&endash;that being unable to hire
out-of-state circulators would "limi[t] the number of voices
who will convey [the initiative proponents'] message"
ante, at 10 (bracketing in original)&endash;is that under
today's decision, a State cannot limit the ability to circulate
issues of local concern to its own residents.

May a State prohibit children or
foreigners from circulating petitions, where such restrictions would
also limit the number of voices who could carry the proponents'
message and thus cut down on the size of the audience the initiative
proponents could reach? Cf. Meyer, 486 U.S., at
422&emdash;423. And if initiative petition circulation cannot be
limited to electors, it would seem that a State can no longer impose
an elector or residency requirement on those who circulate petitions
to place candidates on ballots, either. At least 19 States plus the
District of Columbia explicitly require that candidate petition
circulators be electors,3 and at least one other State
requires that its petition circulators be state
residents.4 Today's decision appears to place each of
these laws in serious constitutional jeopardy.

III

As to the other two laws struck down by
the Court, I agree that the badge requirement for petition
circulators is unconstitutional. McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334 (1995). I also find instructive, as the
Court notes, ante, at 12, n. 15, that Colorado does not
require such badges for those who circulate candidate petitions. See
generally Colo. Rev. Stat. §1&emdash;4&emdash;905 (1998).

I disagree, however, that the First
Amendment renders the disclosure requirements unconstitutional. The
Court affirms the Court of Appeals' invalidation of only the portion
of the law that requires final reports to disclose information
specific to each paid circulator&endash;the name, address, and amount
paid to each. Important to the Court's decision is the idea that
there is no risk of "quid pro quo" corruption when money is
paid to ballot initiative circulators, and that paid circulators
should not have to surrender the anonymity enjoyed by their volunteer
counterparts. I disagree with this analysis because, under Colorado
law, all petition circulators must surrender their anonymity
under the affidavit requirement. Colorado law requires that each
circulator must submit an affidavit which must include the
circulator's "name, the address at which he or she resides, including
the street name and number, the city or town, [and] the
county." Colo. Rev. Stat. §1&emdash;40&emdash;111(2) (1998).
This affidavit requirement was upheld by the Tenth Circuit as not
significantly burdening political expression, American
Constitutional Law Foundation v. Meyer, 120 F.3d 1092,
1099 (1997), and is relied upon by the Court in holding that the
registered voter requirement is unconstitutional. See ante, at
11. The only additional piece of information for which the disclosure
requirement asks is thus the amount paid to each circulator. Since
even after today's decision the identity of the circulators as well
as the total amount of money paid to circulators will be a matter of
public record, see ante, at 16, I do not believe that this
additional requirement is sufficient to invalidate the disclosure
requirements as a whole. They serve substantial interests and are
sufficiently narrowly tailored to satisfy the First Amendment.

IV

Because the Court's holding invalidates
what I believe to be legitimate restrictions placed by Colorado on
the petition circulation process, and because its reasoning calls
into question a host of other regulations of both the candidate
nomination and petition circulation process, I dissent.

Notes

1. The respondents also presented the example of children who
wished to circulate petitions. Indeed, one of the respondents in this
case&endash;William David Orr&endash;was a minor when this suit was
filed and was apparently included in the action to give it standing
to challenge
the age restriction element of Colo. Rev. Stat.
§1&emdash;40&emdash;112(1) (1998). Because the Court of Appeals
held that the age restriction on petition circulation was
constitutional, it is unnecessary to point out the absurdity of the
respondents' minority argument.

2. The Court dismisses this state interest as "diminished,"
by noting that the affidavit requirement identifies residents.
Ante, at 12. Yet even if the interest is diminished, it surely
is not eliminated, and it is curious that the Court relies on the
affidavit requirement to strike down the elector requirement, but
does not use it to preserve that part of the disclosure requirements
that also contain information duplicated by the affidavits. Cf., Part
V, ante.